Concept

Common Law Versus Model Penal Code

Arson

Common Law Versus Model Penal Code

Common law arson and the Model Penal Code offense both punish deliberate burning, but they start from different questions, and that difference decides most exam fact patterns. The common law defines the crime by the interest it protects: arson is the malicious burning of the dwelling of another, which breaks into four elements, namely malice, a burning, of a dwelling, that another uses as a dwelling.¹ The Model Penal Code defines the crime by what the actor was trying to accomplish: a person commits arson, a second-degree felony, by starting a fire or causing an explosion with the purpose of reaching one of the listed objectives.² Because states codified arson in different ways, a problem may call for either definition. The comparison below follows the issues on which the two systems most often give different answers.

The first divergence is the means of destruction. Common law arson requires that the damage be caused by fire, so a blast that wrecks a structure without any fire does not qualify.³ The code lists starting a fire and causing an explosion side by side, so the same blast can satisfy the offense.⁴ The difference follows from what each definition is built around. A rule centered on the danger fire poses to people sleeping in a home has little reason to reach a detonation, while a rule centered on what the actor set out to destroy has no reason to care which method he chose.

The second and third divergences concern what is burned and whose it is, and they come from the same shift in focus. At common law the structure must be a dwelling, which means a place people regularly use for sleeping, and someone other than the defendant must use it as a dwelling.⁵ Title is irrelevant under that test, because the question is who lives in the place. A landlord who burns a house occupied by his tenant satisfies the element, and an owner who burns the house in which he alone lives does not. The code's objects are a building or occupied structure of another, and its definitions stretch occupied structure to cover vehicles and places adapted for overnight accommodation or for carrying on business, whether or not anyone is inside.⁶ Of another there turns on whether some person other than the actor holds an interest in the property that the actor is not privileged to infringe, so habitation drops out as the test. A neighbor's empty commercial building therefore falls outside the common law offense and inside the code's.

The fourth divergence is the mental state, and here the code is the narrower system. Common law malice has nothing to do with ill will or motive. It exists when the defendant intends that the structure burn, knows that it will, or consciously disregards an obvious risk that it will, while an accidental burning, even a negligent one, falls short.⁷ The code demands purpose: the actor must start the fire or cause the explosion with the object of destroying a building or occupied structure of another, or of collecting insurance, so knowledge or recklessness about the burning does not satisfy § 220.1(1).⁸ A defendant whose state of mind is only reckless can therefore commit common law arson and still fall outside the code's arson offense, and the conduct must then be analyzed under the code's separate reckless-burning offense.

The last divergence is insurance burning. At common law a person who burned his own dwelling to obtain insurance proceeds did not commit arson, and modern statutes now treat that conduct as insurance fraud in a separate offense.⁹ The code makes the purpose of collecting insurance for the loss its own route to arson, reaching property that is the actor's own as well as property that is another's, and it gives the actor an affirmative defense when the conduct did not recklessly endanger a building or occupied structure of another or place anyone in danger of death or bodily injury.¹⁰ The common law's silence follows from its attention to habitation, because the victim of an owner's insurance burning is the insurer, whose interest a habitation-centered definition never considered. The code's coverage follows from its attention to purpose, because the fraudulent aim is itself the wrongful object.

Hypothetical Illustration

A defendant intending to destroy a neighbor's commercial building detonates a charge that demolishes it. No fire breaks out, and nobody sleeps in the building. At common law there is no burning by fire and no dwelling, so there is no arson. Under the code, the defendant caused an explosion with the purpose of destroying a building of another, so § 220.1(1)(a) is satisfied.¹¹

Change the object. An owner burns his own building to collect insurance, and the fire endangers a neighbor's building. This is not common law arson, because the burning of one's own property for insurance was not arson then.¹² It is arson under the code's insurance branch, and the affirmative defense is unavailable because another's building was endangered.¹³

Change the mental state. A guest sets off a flare in the living room of a tenant's occupied house as a stunt. She hopes nothing will burn but is aware of an obvious risk that the curtains will ignite, and the curtains catch and char the wall. Common law malice includes reckless disregard of an obvious risk, so all four elements are met.¹⁴ The code requires purpose, and burning the house was not her object, so § 220.1(1) is not satisfied.

Change nothing that matters. A defendant who intends to burn a house occupied by a tenant sets it ablaze, and the walls char. The malice, the burning, the dwelling, and its use by another are all present at common law, and the defendant started the fire with the purpose of destroying an occupied structure of another under the code. The choice of system does not change the result.

The first three scenes each move one fact (the means, the object, or the mental state) and the answer flips between systems, while the fourth scene shows the large core of conduct that both systems punish identically. On an exam stem, the trap is applying one system's elements to a question that uses the other, such as demanding a dwelling in a code jurisdiction or accepting recklessness as enough for the code's arson offense. Because a single changed fact can reverse the outcome, the analysis is best run in a fixed order.

Exam Analysis Steps

The order matters because every later step depends on which definition governs, so the first step settles the system and the rest apply its elements. The steps are these:

Identify whether the question applies the common law, the Model Penal Code, or a state statute that extends the common law offense, and apply only that system's elements.
Under the common law, confirm malice, a burning caused by fire, a dwelling, and use of that dwelling by someone other than the defendant.
Under the code, ask what the actor purposely set out to do when starting the fire or causing the explosion, and whether that object was destroying a building or occupied structure of another or collecting insurance.
If the facts involve burning for insurance, check whether the actor's own property was the target and whether another building or person was endangered, since that decides the code's affirmative defense.

Common Law Versus Model Penal Code

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